Layton v. U.S., s. 89-2754

• Decision Date: 28 November 1990
• Docket Number: Nos. 89-2754,89-2804,s. 89-2754
• Citation: 919 F.2d 1333
• Parties: Phillip LAYTON, Appellant, v. UNITED STATES of America, Appellee. Reba J. RICHARDSON, Administratrix of the Estate of Ronnie Richardson, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1333

919 F.2d 1333

18 Fed.R.Serv.3d 944

Phillip LAYTON, Appellant, v. UNITED STATES of America, Appellee.

Reba J. RICHARDSON, Administratrix of the Estate of Ronnie

Richardson, Deceased, Appellant, v. UNITED STATES of America, Appellee.

Nos. 89-2754, 89-2804.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 12, 1990.

Decided Nov. 28, 1990.

David Hodges, Little Rock, Ark., for appellant.

Heidi E. Weckwert, Washington, D.C., for appellee.

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

HEANEY, Senior Circuit Judge.

Reba Richardson and Phillip Layton appeal from a grant of summary judgment for the government. ¹ They contend that the district court erred in converting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) into a motion for summary judgment without first notifying them of this conversion and providing them with an opportunity to respond. Appellants further contend that the district court erred in relying on Arkansas' assumption of risk doctrine to dismiss several of their claims. We agree that the district court erred in granting the summary judgment without giving appellants an opportunity to respond and remand to the district court for further proceedings consistent with this opinion.

FACTS

The United States Forest Service hired two contractors, who in turn hired several employees including the appellants, to cut timber in Arkansas' Ozark-St. Francis National Forest. The logging apparently occurred on steep terrain, where the government marked the trees to be felled. While cutting down a marked tree on September 24, 1986, Ronnie Richardson, Reba's husband, was killed by a falling tree. Just over two months later, on similar terrain approximately five hundred yards from the site of the earlier fatality, a falling tree struck Layton, leaving him a quadriplegic.

These tragedies led to this lawsuit. In their complaints, appellants unleashed a barrage of negligence charges against the government. Relying on the Federal Torts Claims Act, 28 U.S.C. Secs. 1346(b) and 2671-2680 (1989), appellants charged the government with negligence (1) in hiring an incompetent contractor, (2) in not ensuring that the victims were covered by workmen's compensation insurance, (3) in supervising and enforcing the safety regulations of the work sites, and (4) in not altering the conditions and methods of operation in response to the fatality. The district court dismissed the first two claims based on the discretionary function exception to the Federal Torts Claims Act. The fourth claim was dismissed pursuant to Arkansas' assumption of risk defense, while the district court dismissed the third claim under both the discretionary function exception and the court's assumption of risk analysis. ²

DISCUSSION

The district court dismissed appellants' claims on summary judgment, although neither party moved for this action. The government did move for dismissal based on lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and plaintiffs filed a memorandum in opposition to the motion. The district court, without notice to the parties, converted the government's 12(b)(1) motion into a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The plaintiffs were not afforded an opportunity to respond to this development before the court dismissed their cases.

When appropriate, this sort of conversion has been approved. See Less v. Lurie, 789 F.2d 624, 625 n. 1 (8th Cir.1986) (conversion of a Rule 12(b)(1) motion into a Rule 12(b)(6) motion). But see Williams v. City of St. Louis, 783 F.2d 114, 116 (8th Cir.1986) (Federal Rules of Civil Procedure contemplate entry of summary judgment only after a motion by a party). In this case, while conversion from a 12(b)(1) to a 12(b)(6) motion may have been appropriate, it was error to dismiss the plaintiffs' actions on summary judgment on issues not raised in the motion to dismiss without first giving them an opportunity to respond to the new issues.

Federal Rule of Civil Procedure 12(b)(6) provides that if on a 12(b)(6) motion, matters outside the pleadings are presented, "the motion shall be treated as one for summary judgement and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." When interpreting this language, appellant courts demand that the district court notify litigants that it has transformed a 12(b)(1) motion into a 12(b)(6) motion and is considering the motion as one for summary judgment, so that the litigants may respond to the issue the court is weighing. See Davis v. Bryan, 810 F.2d 42, 45 (2d Cir.1987); Property Management & Investments, Inc. v. Lewis, 752 F.2d 599, 605 (11th Cir.1985); Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir.1979).

The government argues that this court has carved out an exception to the notice requirement. Van Leeuwen v. United States Postal Service, 628 F.2d 1093, 1095 (8th Cir.1980). The government contends that Van Leeuwen requires that if a party has submitted affidavits and exhibits outside the pleadings which it understands that the District Court has accepted for consideration, then the non-moving party has notice of the court's intention to treat the motion to dismiss as one for summary judgment. Because, in these cases, the government attached two exhibits to each of its motions to dismiss, the government believes that we are controlled by the Van Leeuwen exception.

For both legal and equitable reasons, Van Leeuwen does not control here. In Van Leeuwen, both parties submitted affidavits and exhibits for consideration by the court; here, only the government submitted exhibits. ³ Moreover, Van Leeuwen did not involve a 12(b)(6) conversion.

A more substantive reason, however, renders Van Leeuwen irrelevant. The record in this case supports the view that the plaintiffs reasonably believed that the district court was considering a motion to dismiss on jurisdictional grounds, not a motion for summary judgment for failure to state a claim. In their Responses to Defendant's Motion to Dismiss, plaintiffs recognized that a 12(b)(1) motion is distinguishable from a 12(b)(6) motion on the ground that the Rules expressly provide that the latter is subject to conversion into a summary judgment motion, while no such provision exists for a 12(b)(1) motion. Hence, plaintiffs tailored their argument to the 12(b)(1) motion for dismissal rather than mounting an attack against summary judgment disposition. Accordingly, if a district court elects to convert a 12(b)(1) motion into a 12(b)(6) motion subject to summary judgment disposition, the court should notify the parties of this conversion, so that they may file appropriate responses. ⁴

The need for such a response is particularly evident here where the factual record is so lean. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This case satisfies neither of these conditions.

Currently, the factual record is limited to the complaint and the contracts between the United States and the logging contractors; the discovery process has not even begun. Correspondingly, the factual contours of this case are undefined. The events leading up to these accidents, the terms of the victims' employment, the competence of the contractor to organize and supervise the work and the on-site safety instructions and working procedures, are all largely unknown. The government's knowledge, or lack thereof of such competence, and any safety concerns voiced by plaintiffs are all unknown.

Usually, such a deficient record is not ripe for summary judgment. This is particularly true here, since the district court relied on Arkansas' assumption of risk doctrine, which has undergone a radical transformation in recent years, to reach its decision. Given this transformation, the facts of this case must be further developed and then carefully evaluated, lest the assumption of risk doctrine be applied in a case that does not warrant its invocation.

On the basis of the record before us, this may have happened here. As this court has recognized, the Arkansas courts have consistently held that the common law assumption of risk defense has merged into Arkansas' statutory comparative fault scheme. See Rini v. Oaklawn Jockey Club, 861 F.2d 502, 507 (8th Cir.1988). The Supreme Court of Arkansas recently confirmed this development, explaining: "This court has held that assumption of risk by a party will not bar recovery but will be considered when assessing fault." Bryant v. Eifling, 301 Ark. 172, 782 S.W.2d 580, 582 (1990) (citations omitted). Because Arkansas usually considers assumption of risk only in assessing fault and not as a complete bar to recovery, it is generally impermissible to hold as a matter of law that assumption of risk bars a claim. To reach this holding on summary judgment, the assumption of risk doctrine would have to retain its discarded quality of being a complete bar to recovery.

To justify its decision that the assumption of risk doctrine barred recovery here, the district court cited both Arkansas and Eighth Circuit case law. After appropriately noting that the government is liable only if under the same circumstances a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred, ⁵ the district court correctly concluded that the government exercised sufficient control over the contractors' operations to create a duty to appellant, ⁶ thus, in substance, rejecting the government's claim of lack of subject matter jurisdiction. The district court then examined Arkansas case law, inquiring whether the appellants were injured by "obvious hazards which are an integral part of the work...